RICHMOND, Va. -- A federal appeals court has declined to review its rejection of a claim made by prescription drug retailers who said West Virginia Attorney General Darrell McGraw is acting like a class action lawyer.

In a 2-1 vote in May, a panel of judges on the U.S. Court of Appeals for the Fourth Circuit ruled McGraw did not file a class action against the companies and that his lawsuit, which alleges they did not pass savings on generic drugs to consumers, should be heard in a state court. Thursday, the court declined a request to have the full roster of Fourth Circuit judges hear the matter.

The request made by the group of pharmacies - which includes Wal-Mart, Target, CVS, Walgreen, Kroger and Kmart - was supported by the Washington Legal Foundation and the Allied Educational Foundation. The two submitted an amicus brief.

In its appeal brief, the group of pharmacies claimed McGraw's lawsuit satisfies the jurisdictional requirements of the federal CAFA.

"The AG's allegations make abundantly clear that more than $5 million and the interests of more than 100 persons are at issue. If the rightful interests of the West Virginia consumers on whose behalf the AG has brought suit are recognized, there also is undeniably minimal diversity between at least some plaintiffs (who are West Virginia citizens) and all defendants (as none of the defendants reside in or is a citizen of West Virginia.)"